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AMERICAN DREDGING CO. v. PLAZA PETROLEUM INC.

January 19, 1993

AMERICAN DREDGING COMPANY, Plaintiff,
v.
PLAZA PETROLEUM INCORPORATED, KERR-MCGEE REFINING CORPORATION, ROYAL PETROLEUM, a division of KERR-MCGEE REFINING CORPORATION, and EKLOF MARINE CORPORATION, Defendants.



The opinion of the court was delivered by: STERLING JOHNSON, JR.

 JOHNSON, District Judge:

 Plaintiff American Dredging Company ("ADC") purchased 38,000 gallons of "No. 2 fuel oil" from Plaza Petroleum Inc. ("Plaza"). Plaza, in turn, contacted Royal Petroleum, a division of Kerr McGee Refining Corporation, Inc. (collectively "KMRC") and purchased 38,000 gallons of fuel from KMRC. Eklof Marine Corp. ("Eklof") was engaged to transport the fuel.

 Plaintiff ADC filed suit against the seller (Plaza) the supplier (KMRC) and the carrier (Eklof) that transported the fuel by ship, seeking monetary compensation for pecuniary damages caused by the allegedly contaminated oil. Plaintiff invoked the admiralty jurisdiction of this court. Discovery has been completed.

 Defendant Eklof now moves for summary judgment on the ground that plaintiff has failed to state a viable cause of action for negligence or for unseaworthiness. In a Memorandum & Order dated March 16, 1992, this court granted summary judgment in favor of Plaza and KMRC on all claims including those stated in terms of negligence and unseaworthiness. Once again confronted with a challenge to the viability of plaintiff's negligence and unseaworthiness claims, this court chooses to address these claims de novo with respect to all of the defendants. Accordingly, the court hereby vacates those portions of its March 16 Memorandum & Order relating to the negligence and unseaworthiness claims asserted by ADC against Plaza and KMRC. *fn1" The court now addresses these claims anew.

 DISCUSSION

 "Under Fed.R.Civ.P. 56(c), summary judgment should be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 'Viewing the evidence produced in the light most favorable to the nonmovant, if a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate.'" Suburban Propane, A Div. of Nat. Distillers and Chemical Corp. v. Proctor Gas, Inc., 953 F.2d 780 (2d Cir. 1992); F.R.Civ.P. 56(c).

 Plaintiff alleges, inter alia, that due to the unseaworthiness of Eklof's vessel and the negligence of the defendants in general, the fuel it purchased became contaminated. Each of the defendants denies the allegations of unseaworthiness and negligence. In seeking summary judgment, defendants aver that as a matter of law, these claims are untenable.

 a. Unseaworthiness Claim

 The duty of seaworthiness is well-recognized by the courts, but such duty has been found to exist only in certain circumstances. Indeed, unseaworthiness has been recognized as a basis for a shipowner's liability to its longshoremen employees. See e.g., Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S. Ct. 514, 27 L. Ed. 2d 562 (1971); Romero v. International Terminal Operating Co., 358 U.S. 354, 413, 79 S. Ct. 468, 501, 3 L. Ed. 2d 368 (1959); Clark v. Solomon Nav., Ltd., 631 F. Supp. 1275, 1279 (S.D.N.Y. 1986); Garcia v. Union Carbide Corp., 176 A.D.2d 219, 574 N.Y.S.2d 341 (1st Dep't. 1991). And, actions relating to workers' compensation and wrongful death predicated on a theory of unseaworthiness have been successfully maintained. See e.g., Cruz v. American Export Lines, Inc., 67 N.Y.2d 1, 499 N.Y.S.2d 30, 489 N.E.2d 1042 (1986), Gjertsen v. Mawson & Mawson, Inc., 135 A.D.2d 779, 522 N.Y.S.2d 891 (2d Dep't. 1987); Muscelli v. Frederick Starr Contracting Co., 296 N.Y. 330, 73 N.E.2d 536 (1947).

 In addition, a statutory duty of seaworthiness has been created by Congress and incorporated into the Carriage of Goods by Sea Act ("COGSA"). Liability under COGSA is predicated upon a carrier's contractual relationship with a shipper. Citrus Marketing Bd. of Israel v. J. Lauritzen A/S, 943 F.2d 220, 223 (2d Cir. 1991); Lucky-Goldstar Intern. (America), Inc. v. S.S. California Mercury, 750 F. Supp. 141, 144 (S.D.N.Y. 1990). Other than the aforementioned duties of seaworthiness, the court discerns no authority for a general maritime duty of seaworthiness.

 Plaintiff seeks recovery for damages allegedly caused by the defendants in circumstances where none of the defendants can be said to have owed a duty of seaworthiness. In this action, there is no allegation of personal injury to a seaman or the like. Nor is this lawsuit against the carrier, Eklof, predicated on a contractual relationship between ADC and Eklof. Thus, the common-law duty of seaworthiness is not applicable to the parties herein and the statutory rights embodied in COGSA are also not of force in this context. Accordingly, the instant seaworthiness claim must fail.

 b. Negligence Claim

 Plaintiff also seeks recovery on a theory of negligence. But, notably, plaintiff seeks damages for purely economic loss. Specifically, plaintiff seeks damages for certain repairs and for lost income resulting from "downtime" allegedly caused by its receipt of contaminated fuel. The issue faced by this court is whether a negligence claim may be stated in admiralty ...


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